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If the phrase “Oppa Gangnam Style” doesn’t mean anything to you yet, you may want to Google it or ask your kids about it before you attend your next wedding reception, or you’ll be left wondering why everyone is hopping up and down on invisible horses. The combination of catchy riffs, corny-yet-hip dance moves, a satirical jab at upper-class commercialism, and a host of good looking girls has made the music video of this rap by Korean artist Psy (short for “Psycho”) the most “liked” YouTube video of all time.

Under the copyright law of most countries, public use of someone else’s creative work without the owner’s permission generally constitutes an infringement of the owner’s rights. You may be surprised to know, for example, that the song “Happy Birthday to You” is actually copyrighted and a license is required for all public uses of it.

Even though the original version of the tune was written back in 1893 by two Louisville kindergarten teachers (and the lyrics sometime later), Summy-Birchard Music–now part of giant music publisher Warner Music Group–claims ownership of the song’s copyright, dating from 1935. While the validity of this copyright is highly suspect due to lack of historical evidence, Warner Music will probably continue to collect an estimated $2 million in annual royalties from all commercial uses of the song until someone with a deep enough pocket contests the claim in court, or until the copyright expires in 2030.

Fortunately, private use of other people’s copyrighted works—that is, use within a normal circle of family and social acquaintances—does not constitute copyright infringement. So, singing “Happy Birthday” at your kids’ parties won’t get you sued, and neither will singing Gangnam Style in your shower. However, releasing a video on the Internet is, by any definition, a public use. Therefore, posting a video of yourself performing “Happy Birthday” or “Gangnam Style” online without the owners’ permission technically constitutes an infringement.

Furthermore, even if you are not copying or performing a copyrighted work, but are producing a work based on someone else’s work, you still generally need permission. Creating a new work based on someone else’s prior work (called a “derivative work”) is another example of an infringement that copyright law protects against. Many songwriters have been sued for “sampling” other writers’ music (incorporating parts of other writers’ songs into their works). Contrary to a widely circulated rule of thumb, even using as few as four notes from another song can be an infringement.

So how is it that the hundreds of Gangnam Style remake creators have not gotten into trouble?

Many of these remakes may qualify as parodies, which are generally protected under the copyright law’s “fair use” doctrine. Under the U.S. Copyright Act, fair use is determined by analyzing: (1) the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount used in relation to the work as a whole; and (4) the effect of the use on the potential market or value of the work.

Thanks to another rapper two decades ago, parodies are generally considered to be a form of fair use. In 1989, rap group 2 Live Crew recorded the song “Pretty Woman,” a parody of singer Roy Orbison’s earlier rock ballad “Oh, Pretty Woman.” The publisher of Orbison’s song sued for infringement and took the case up to the U.S. Supreme Court.

As Justice David Souter described it in the Supreme Court case Campbell v. Acuff-Rose Music, Inc., 2 Live Crew’s version juxtaposed “the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility,” serving as a commentary “on the naivete of the original of an earlier day.” After carefully analyzing each factor in the four-factor fair use test, the Court decided that 2 Live Crew’s parody of Orbison’s song was fair use. Key to the Court’s decision was that 2 Live Crew transformed Orbison’s song into something new that ridiculed the original.

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As I mentioned in my article, several authors have made this claim that Psy intentionally “released” his copyright. I contacted all of the authors who I could reach, and none of them had an original source for this claim.

There is no formal mechanism for releasing copyright (Creative Commons is the closest thing). More than likely, Psy probably stated somewhere that he wouldn’t enforce his copyright. If anyone has a definitive source (probably in Korean), I’d appreciate it seeing it.

PSY can change his mind at anytime and sue every single infringer. I have seen many apps on the iphone market and products online that use his image, music and dance and that are clearly infringing. He has not sued anyone but that can change at any moment for any reason. It doesn’t even have to be him, it could be a future record label or owner of this song.

If you were doing a fun youtube video I wouldn’t worry much about it… You should be more worried if you were one of these iphone apps though.

Psy isn’t actually up for money only, I think. What I mean is that what people see in him is freeing his artisic spirit rather than making large sum of cash. Of course, he needs filthy amount of money to keep on doing his performances in all over the world paying for his staff, etc. Psy just threw out a free concert (even if the Seoul City Municipal Office paid for the cost) to c.100,000 audiences. He’s well known for his generosity.

Great article. Thanks for an explanation of parody, satire, and the opportunity to learn about Gangnam Style.

After watching a few parodies, I can see another distinction between parody and satire. It seems like parody points the viewer back to the original. Although it is funny itself and making fun of the original, the parody is still pointing toward and even complimenting the original. The parodies here make you want to go back and view the original again.

Satire would point the viewer away from the original and toward some other cause, issue, or organization.